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Or. 39, rule 1 C.P.C. in specific performance case from not alienating and from not to interfering = When the recital of document stated that no possession was delivered to the vendors , they are not permitted to go and say against the recital of a document and are not entitled for any injunction under Or.39, rule 1 of C.P.C.; if they are in possession, they are not entitled to alter /change the nature of suit schedule property = PETITIONER RESPONDENT UPPULURI RADHIKA VS KAKARLA RAMAKRISHNA JAGADGUR = publshed in http://hc.ap.nic.in/csis/MainInfo.jsp?mtype=CMA&mno=393&year=2013

Or. 39, rule 1 C.P.C. in specific performance case from not alienating and from not to interfering = When the recital of document stated that no possession was delivered to the vendors , they are not permitted to go and say against the recital of a document and are not entitled for any injunction under Or.39, rule 1 of C.P.C.; if they are in possession, they are not entitled to alter /change the nature of suit schedule property =

In all the suits, interlocutory applications were filed by the respective plaintiffs for the relief of temporary injunction to restrain the respective defendants from alienating the suit schedule properties.In addition to that, in O.S.Nos.37 and 38 of 2011, applications were filed under Order 39 Rules 1 and 2 C.P.C. to restrain the defendants therein from interfering with the possession of the property.Batch of applications out of each suit were disposed of through a common order.The gist thereof is that the purchasers are in possession and enjoyment of the property and they are entitled for the injunctions prayed for by them.The corresponding reliefs claimed by the defendants in those suits through opponents were denied.Hence, this batch of civil miscellaneous appeals.=

The relationship between the parties is governed by the respective memoranda of understanding.

The execution thereof is not disputed.

A perusal of the same, particularly clause IV thereof, discloses that the possession of the property shall be delivered on payment of the entire consideration at the time of registration of sale deeds.

The purchasers of the property, however, plead that the possession was delivered on payment of substantial amount of consideration and thereafter, the property was devolved by obtaining permission from the concerned local authority by making huge investments.

Once there is a recital in the memorandum of understanding to the effect that the possession can be delivered only on payment of the entire consideration at the time of registration of the documents, the purchasers thereunder cannot be heard to plead that the possession was delivered to them, de hors Clause IV. If that were to be so, there ought to have been a written document stating that possession was delivered. However, even while the possession is supposed to be with the vendors, they cannot be permitted to alienate the property or to alter the same except with the permission of the Court.

Hence, we dispose of all the appeals directing that:

(a)the vendors i.e. Uppuluri Radhika, Bhaskara Lakshmi and Atchyuta Vardhini shall not alienate the suit schedule property or alter the nature thereof, particularly in respect of structures if any, without specific permission of the Court;

(b)the purchasers, namely K.Swamiji Suryanarayana and Kakarla Ramakrishna Jagadguru shall not interfere with the possession of the original owners vis-à-vis the property during the pendency of the suits; and

(c)The trial Court shall take up the suits for hearing as early as possible.

The miscellaneous petitions filed in these appeals shall also stand disposed of.

CMA 393 / 2013

CMASR 17779 / 2013

PETITIONER

RESPONDENT

UPPULURI RADHIKA

VS

KAKARLA RAMAKRISHNA JAGADGURU

PET.ADV. : KUMARI G K V D

RESP.ADV. :

SUBJECT: ORDER 43

DISTRICT: WEST GODAVARI

THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY

AND

THE HON’BLE SRI JUSTICE S.V. BHATT

C.M.A. Nos. 388, 389, 390, 391, 392, 393, 394, 395, 396, 397,

398 and 399 of 2013

COMMON JUDGMENT: (per the Hon’ble Sri Justice L.Narasimha Reddy)

In this batch of appeals, common question of fact and law are involved. Hence, they are disposed of through a common judgment.

Uppuluri Radhika and her two sisters, by name Bhaskara Lakshmi and Atchyuta Vardhini had fairly vast extent of land being Acs.9.00 in Survey No.345 of Jangareddygudem Village and Mandal, West Godavari District. Uppuluri Radika executed two memoranda of understanding in favour of K.Swamiji Suryanarayana and Kakarla Ramakrishna Jagadguru proposing to sell Acs.2.00 each of the said land. Her sisters executed memoranda of understanding in favour of brothers of Kakarla Anantha Lakshmi, Kakarla Rama Krishna Jagadguru and Kakarla Swamiji in respect of Acs.2.50 cents of land. Similarly, K.Atchyuta Vardhini executed memorandum of understanding in favour of Anantha Lakshmi in respect of Acs.2.50 cents of land. The memoranda of understanding incorporated several clauses as regards payment of consideration, delivery of possession and nature of enjoyment of the property.

While Kakarla Ramakrishna Jagadguru and his brothers and sister filed four separate suits for specific performance of memoranda of understanding in the Court of the Additional District Judge, West Godavari, being O.S.Nos.32, 33, 40 and 41 of 2011, two sisters of Radhika filed O.S.Nos.37 and 38 of 2011.

In all the suits, interlocutory applications were filed by the respective plaintiffs for the relief of temporary injunction to restrain the respective defendants from alienating the suit schedule properties. In addition to that, in O.S.Nos.37 and 38 of 2011, applications were filed under Order 39 Rules 1 and 2 C.P.C. to restrain the defendants therein from interfering with the possession of the property. Batch of applications out of each suit were disposed of through a common order. The gist thereof is that the purchasers are in possession and enjoyment of the property and they are entitled for the injunctions prayed for by them. The corresponding reliefs claimed by the defendants in those suits through opponents were denied. Hence, this batch of civil miscellaneous appeals.

Heard the learned counsel for the appellants and the learned counsel for the respondents, who filed caveat.

The relationship between the parties is governed by the respective memoranda of understanding. The execution thereof is not disputed. A perusal of the same, particularly clause IV thereof, discloses that the possession of the property shall be delivered on payment of the entire consideration at the time of registration of sale deeds. The purchasers of the property, however, plead that the possession was delivered on payment of substantial amount of consideration and thereafter, the property was devolved by obtaining permission from the concerned local authority by making huge investments.

Once there is a recital in the memorandum of understanding to the effect that the possession can be delivered only on payment of the entire consideration at the time of registration of the documents, the purchasers thereunder cannot be heard to plead that the possession was delivered to them, de hors Clause IV. If that were to be so, there ought to have been a written document stating that possession was delivered. However, even while the possession is supposed to be with the vendors, they cannot be permitted to alienate the property or to alter the same except with the permission of the Court.

Hence, we dispose of all the appeals directing that:

(a)the vendors i.e. Uppuluri Radhika, Bhaskara Lakshmi and Atchyuta Vardhini shall not alienate the suit schedule property or alter the nature thereof, particularly in respect of structures if any, without specific permission of the Court;

(b)the purchasers, namely K.Swamiji Suryanarayana and Kakarla Ramakrishna Jagadguru shall not interfere with the possession of the original owners vis-à-vis the property during the pendency of the suits; and

(c)The trial Court shall take up the suits for hearing as early as possible.

The miscellaneous petitions filed in these appeals shall also stand disposed of.

The Hon’ble Sri Justice B.Chandra Kumar Appeal Suit No.144 of 2012 Dated 9th August, 2012Judgment: The appellant filed this appeal challenging Order, dated27-01-2012, passed by the learned Senior Civil Judge, Darsi, in CFR.No.90 of 2012, refusing to register the suit filed by him on the ground that the same is barred by limitation . The plaintiff filed the suit for specific performance basing on agreement of sale, dated 13-11-2008. As per the terms and conditions of the agreement of sale, the balance amount of Rs.4 lakhs out of the total sale price of Rs.9 lakhs was to be paid within two months from the date of expiry of the limitation of the said agreement of sale. The case of the appellant is that though he had been requesting the respondent to receive the balance sale consideration and register the sale deed in his favour, the respondent did not come forward; that therefore, he got issued a legal notice to the respondent on12-10-2011; that the respondent acknowled…

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable =in VadirajNaggappa Vernekar (deceased by L.Rs) v. Sharad Chand Prabhakar Gogate (supra), it is held as follows: "17. It is now well settled that the power to recall any witness underOrder 18 Rule 17 CPC can be exercised by the Court either on its own motion oron an application filed by any of the parties to the suit, but as indicatedhereinabove, such power is to be invoked not to fill up the lacunae in theevidence of the witness which has already been recorded but to clear anyambiguity that may have arisen during the course of his examination. Of course,if the evidence on re-examination of a witness has a bearing on the ultimatedecision of the suit, it is always within the discretion of the Trial Court topermit recall of such a witness for re-examination-in-chief with permis…

The 1st respondent herein filed O.S.No.101 of 2011 in the Court of III
Additional District Judge, Tirupati against the appellants and respondents 2 to
5 herein, for the relief of perpetual injunction in respect of the suit schedule
property, a hotel at Srikalahasti, Chittoor District. He pleaded that the land
on which the hotel was constructed was owned by the appellants and respondents 2
and 3, and his wife by name Saroja, and all of them gave the property on lease
to M/s. Swarna Restaurant Private Limited, 4th respondent herein, under a
document …